|The Tax Publishers2021 TaxPub(DT) 0395 (Del-Trib)
INCOME TAX ACT, 1961
Where CBI registered a regular case against one public servant then Commissioner (Appeals) and in searches conducted at the residential/office premises of the officer concerned, he was found in posession of cash/jewellery/valuable items worth crores of rupees and further CBI investigation disclosed that he was an instrumental in causing loss of crores of rupees to Government Exchequer; Because said officer had been compulsorily retired by the Government of India with effect from 11-6-2019 and accordingly, he had become functus officio with effect from 11-6-2019, under such grave unusual circumstances, the Commissioner (Appeals)'s order itself being one being incorrect as delivered by a functus officio the case was recalled for rehearing.
Miscellaneous application - Recall of order - Dismissal of Revenue's appeal by ITAT citing case being below monetary limit and then subsequent discovery of Commissioner (Appeals) of having delivered the order as functus officio - Revenue claiming reinstatement of the appeal
Revenue's appeal case was dismissed by the ITAT citing it being below threshold of monetary limits under Circular No. 17 of 2019, dated 8-8-2019. Subsequently, the revenue moved this Miscellaneous Application citing that the said Commissioner (Appeals) who had passed the case was accused of corruption and misdemeanour in CBI investigations and was forcibly retired by the department and declared as functus officio. So, the order passed by the functus officio was invalid and void per law, hence the dismissal of the appeal by ITAT deserves rehearing. Held: Contention was raised by the AO in the Misc. Application stating that the Commissioner (Appeals) has passed order in this case on 31-12-2018 wherein the appeal filed by the assessee was disposed of. The Revenue stated that a case has been filed with Central Bureau of Investigation against the Commissioner (Appeals)-I, and therefore, this order needs to be recalled. The AO had pointed out serious irregularities stating that the Commissioner (Appeals) had passed an order on 31-12-2018. However, the notices for hearing were handed over to the Postal authorities through Speed Post only on 31-12-2018 and therefore, the impugned order by the Commissioner (Appeals) could not have been passed. Therefore, the order of the Commissioner (Appeals) suffers from jurisdictional defect under such grave unusual circumstances, the Commissioner (Appeals)'s order itself being one being incorrect as delivered by a functus officio the case was recalled for rehearing.
FAVOUR : Against the assessee
A.Y. : 2009-10
IN THE ITAT, DELHI 'FRIDAY' : NEW DELHI BENCH
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